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Civil Liberties and Public Policy
I. Introduction: What are Civil Liberties? Civil liberties are legal and constitutional rights granted to individuals to protect them against government intrusion into their lives. Name some? From where are they derived? How are we protected against their infringement? Who is the final arbiter of these rights?
I. The Bill of Rights Amendments 1-10 of the U.S. Constitution Passed in 1789. Became part of Constitution in 1791.
What do they do/ They ensure basic civil rights and liberties of citizens. See p. 84 Table 4.1 (Know this) What is the intent? The original intent of the Bill of Rights was to restrict the power of the new federal government. Every state had its own Bill of Rights. "Congress shall make no law..."
If meant to curb power of the federal government, how does it apply to states? The 14th Amendment says "No state shall..."
A. Incorporation doctrine:
The U. S. Supreme Court has decided that some not all of the protections afforded by the Bill of Rights apply to the state action by means of a legal doctrine known as selective incorporation.
The doctrine states that the 14th amendment's Due Process language sweeps up some of the same protections as safeguarded by the 5th Amendment's Due Process language which applies only to federal action. The Due Process Clause therefore sweeps up the specific guarantees of the Bill of Rights within its protections.
B. Selective Incorporation
So far, not all 10 Amendments have been incorporated. The 2nd, 3rd, 7th and the 5th Amendment's right to indictment by grand jury have not been incorporated in to the Due Process clause of the 14th A. and therefore, their protections do not apply to the states.
See p. 86 Table 4.2 This shows which amendments have been incorporated and the name of the case and date of incorporation.
Justice Black: insisted all the specific guarantees of the B of R are incorporated in the 14th Amendment. Others believed selective incorporation was best as did the majority of the Supreme Court which decided the landmark cases on point. They felt that the B of R guarantees fundamental rights one by one rather than incorporating them in one swoop. Otherwise it would unduly nationalize state criminal process and limit state autonomy in enforcing criminal laws. A 10th A issue of federalism.
II. The 1st Amendment:
A. Freedom of Religion-"Congress shall make no law respecting an establishment of religion prohibiting the free exercise thereof."
1. The Scope of this protection:
a. Establishment Clause: Text book says:
(1) government is prohibited from promoting religion or favoring one religion over another, or participating in activities of a religious organization or allowing it to participate in government.
(2) Constitutional test: For law to pass test of constitutionality it
(a) must have a secular legislative purpose
(b) its primary effect must be one that neither advances nor inhibits religion and
(c) It must not create an excessive government entanglement with religion
EXAMPLES: Is it Constitutional? How did the Supreme Court decide?
1. A city includes the nativity scene in its annual Christmas display in a public park. Yes. Secular purpose. Not advancing religion. Not excessive entanglement.
2. A state statute grants employees an absolute right not to work on their Sabbath. No. It has primary effect that advances particular religious practice.
3. State legislature opens each day with a prayer by a chaplain who is paid from public funds. Yes. The 200 yr. old practice of opening sessions of Congress with a pryer indicates that the First Congress (which drafted the 1st Amendment) didn't consider this practice to be violative of the 1st Amendment.
4. Assistance to religious education
Ok, if indirect assistance for secular purpose: Books , buses, releasing students for a certain period during school to get instruction at a religious school.
Not Ok, if direct grant of money or reimbursement for administering tests, hiring teachers, showing films videos because they can have religious content.
b. Free Exercise Clause: forbids the government from compelling individuals to believe something concerning religion, or to do or refrain from doing something contrary to one's belief concerning religion. It guarantees a person's right to believe whatever she/she wishes concerning religion. This right may not be interfered with unless there is a compelling governmental interest.
EXAMPLES: Is it Constitutional? How did the Supreme Court decide?
1. Both federal and state statutes make polygamy illegal. Yes, religious belief is not per se an excuse to engage in conduct which is against public interest.
2. A statute which denies VA benefits to conscientious objectors who have performed alternative civilian service. Yes. It was their choice and not an interference with their religious beliefs.
3. A person refused to work on the Sabbath and was refused unemployment compensation by the state on the grounds that her refusal to work disqualified her for failure to accept suitable work. No. improper as a restriction on the free exercise of her religion.
B. Freedom of Expression:
(1) Scope of this protection:
(a) Includes: speech non-speech symbolic speech actions Examples: Spoken or written speech Flag burning Draft card burning Wearing Tee shirt with message Wearing a black arm band
(b) Excluded: (i) obsenity-S.Ct. left this standard to states to define (ii) defamation (iii) libel *different standard private persons/public figures private - false and injury public person - false and actual malice
(iv) expression representing a clear and present danger: danger must be imminent yelling fire in crowded theater hate groups rally divulging government secrets
(c) Prior restraint: preventing expression before it takes place (i) permits for parades (ii) permits for demonstrations, political gatherings time, place, and manner controls ok. content controls not ok not ok to compel disclosure of political beliefs/associations (d) to be valid regulation/law prohibiting expression must not be vague
(e) can control commercial speech if : (i) government's interest is substantial (ii) restrictions directly advance the government's interest (iii) restriction only as extensive as necessary to serve that interest
C. Freedom of Association-Freedom of Assembly and Petition
1. Can not discriminate- A state statute requiring an all male nonprofit club (Rotary) to admit women to membership has been held valid.
2. Attempt to force associations to disclose the list of members to force members to list organizations they belong to are usually void. |
